Table of Recent Legislative and Regulatory Changes

06/11/2012|Canadian Labour Reporter|Last Updated: 06/11/2012

Bill/Reg./No./Name

Status

Purpose

Federal

Bill C-38, Jobs, Growth and Long-term Prosperity Act

Second reading on May 14, 2012.

The bill will: amend Part I of the Canada Labour Code (Code) to require each party to a collective agreement to file a copy of the agreement with the Minister of Labour; amend Part III of the Code to generally require employers that provide benefits to their employees under L.T.D. plans to insure those plans; increase in maximum fines for first, second and subsequent offences under section 256(1) of the Code, establish the Social Security Tribunal; repeal the Fair Wages and Hours of Labour Act; amend the Old Age Security Act to gradually increase the age of eligibility for the Old Age Security Pension, the Guaranteed Income Supplement, and the Allowance for the Survivor and to allow individuals to voluntarily defer their Old Age Security Pension up to five years past the age of eligibility, in exchange for a higher, actuarially adjusted pension.

Labour Mobility

Announced on April 25, 2012.

A new Accelerated Labour Market Opinion Initiative (A-LMO) acknowledges previously successful employers, who have obtained at least one positive Labour Market Opinion in the previous two years and who remain compliant with the temporary foreign worker program. The reward for compliance is the guarantee that new Labour Market Opinion requests will be processed within 10 business days to assist the employer’s business needs and urgent labour shortages.

Private member’s bill that would require labour organizations (including unions) to file financial information with the Minister of National Revenue, who would then be required to post them online for all Canadians to access. The bill has been referred to the Standing Committee on Finance of the House of Commons.

In this case, the Supreme Court of Canada considered whether provincial law or federal law applied to an employer whose business included both provincial and federal elements. Tessier is a crane company. Its main business was the operation and rental of cranes for construction work and industrial maintenance, but it also did some stevedoring work. The Court decided that even if the work of those employees is vital to the functioning of a federal undertaking, it will not render federal an operation that is otherwise local if the work represents an insignificant part of the employees’ time or is a minor aspect of the essential ongoing nature of the operation. The court found that if the amount of federal work is 25%, or even 29%, that amount of federal work may not be enough to make the entire operation fall under the federal labour jurisdiction.

In this case, the Federal Court of Appeal confirmed that a same-day bicycle and pedestrian courier company operating solely in the Greater Toronto Area is subject to provincial, not federal, jurisdiction. The Court overturned a decision of the Canada Industrial Relations Board ruling that determined that TurnAround was providing a “Postal Service” and was therefore subject to federal jurisdiction in respect of its labour relations.

British Columbia

Statutory Holidays

Announced on May 28, 2012.

The Premier announced that Family Day will be celebrated on the second Monday in February.

Bill 14, Workers’ Compensation Amendment Act, 2011

Royal Assent on May 31, 2012. In force on Assent.

This legislation will expand the coverage of mental stress claims for workers’ compensation coverage. Under this legislation, the requirement that the mental stress be an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker’s employment has been eliminated. Instead, a worker will have to demonstrate that the mental stress is a reaction to: (i) one or more traumatic events arising out of and in the course of the worker’s employment; or (ii) a significant work-related stressor, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment.

Bill 38, Pension Benefits Standards Act

Royal Assent on May 31, 2012. In force on proclamation.

This bill will allow the private sector to offer a wider choice of pension plan options. Some of the changes set out in the bill are: the reduction of administrative costs and the enhancement of pension plan member rights. It also establishes a framework that will give former pension plan members the option of withdrawing locked-in funds in a registered retirement savings plan (RRSP) or life income fund in cases of financial hardship. The changes permit innovative alternatives to existing plans, such as jointly sponsored cost-sharing pension plans and target benefit plans. Other key amendments include requiring governance and funding policies for defined benefit (DB) and target benefit plans and providing the superintendent of pensions the power to levy administrative penalties and appoint replacement administrators or actuaries.

Alberta

Minimum Wage

Effective on Sept. 1, 2012.

The Alberta minimum wage is increasing 35¢ from $9.40 to $9.75.The minimum wage for servers of alcohol remains at $9.05.

Alberta Occupational Health and Safety (OHS) Regulation

The regulation will expire on March 31, 2013. A review is underway. Last fall, Employment and Immigration accepted input on suggestions for improvements to the regulations. It is currently considering all input and will develop a formal proposal that will be available for public consultation in 2012. The current review is of the OHS Regulation only, which outlines the administrative requirements relating to health and safety at work sites.

Northwest Territories

Bill 21, Employment Standards Amendment Act

In force on July 2, 2012.

TheBill provides for an unpaid reservist leave for employees who are members of Canada’s reserve force and who are required to be away from work for service with the reserves. Employees who plan to take the leave would be required to give their employer at least four weeks’ notice in writing (or at the earliest opportunity if they could not give four weeks). As with other leaves, employers would be prohibited from changing a condition of employment or terminating the employment of an employee on reservist leave without the employee’s agreement. The reinstatement provisions that apply for other unpaid leaves under the Act would also apply to reservist leave.

Saskatchewan

Labour Standards

Announced on May 2, 2012.

The Government of Saskatchewan is proposing to modernize, simplify and amalgamate labour legislation and consider developing a Saskatchewan Employment Code. The intent of the review is to: (1) restructure and re-organize the legislation so it is easier to use and understand; (2) eliminate inconsistencies to reduce confusion; and (3) clarify which legislation applies in particular situations.

Manitoba

Operations of Mines Regulation

In force on April 1, 2012.

The regulation addresses recommendations from the 2008 judicial inquest report on the fatal smelter explosion at Hudson Bay Mining and Smelting in 2000 and other recommendations identified through consultation with stakeholders including:• stronger limitations on tethering workers to remote-controlled equipment;• stricter safety procedures when workers use water or other potentially dangerous substances near molten material;• specific instruction for inspection and maintenance of raise climbers and the location of underground refuge stations; • stronger requirements to ventilate vehicle emissions from mobile equipment underground; and• updated technical standards for roll-over and falling-object protection on vehicles.The province is developing resources to help employers and employees to better understand the new regulation by providing informational bulletins highlighting the updated requirements, and mines regulation summary sheets covering the entire regulation.

Ontario

Bill 55, Strong Action for Ontario Act (Budget Measures), 2012

Second reading on June 4, 2012.

The bill sets out changes to pension grow-in benefit rules in Ontario that are expected to come into effect July 1. This could impact the terminations employers are making now. Grow-in benefits entitle certain employees who are terminated before they meet the eligibility requirements for enhanced benefits to become entitled or to “grow into” the enhanced pension benefits even though their employment is terminated before they meet the eligibility requirements. All involuntarily terminated employees, except those fired for cause, who are enrolled in defined benefit pension plans and who have 55 service points (the sum of their age and years of service) will have access to pension grow-in benefits as of July 1. This means that if the plan provides enhanced benefits, such as unreduced early retirement to members who meet certain conditions, members who are terminated before meeting those conditions, but whose points equal 55 points, can grow into and qualify for such enhanced pension benefits after their employment is terminated.

Regulation 909, General Regulation, under the Pension Benefits Act

Draft released on April 30, 2012.

Among other things, the provisions in this regulation would enable the proclamation of the “retired member” provisions in the PBA; implement immediate vesting for plan members and increase the threshold for the small pension payout rule; clarify the surplus payment rules; and reflect changes to the Income Tax Act (Canada) regarding Individual Pension Plans.

Bill 21, Retirement Homes Act

Largely in force on July 1, 2012.

All retirement homes in Ontario — roughly 700 — must apply for an operating licence under rules set out by the new act by July 1, 2012. The legislation sets out requirements regarding staff and volunteers. Retirement homes must ensure that employees and volunteers are properly trained in different areas such as emergency procedures, the home’s policy regarding zero tolerance of abuse and neglect of residents and infection control. Employees must also be trained in the Resident’s Bill of Rights, injury and fire prevention, behavior management and other items set out in the legislation. The Act also sets out screening measures for employees which includes ensuring that all employees have proper training and qualifications and that all employees have submitted police checks.

Offices of the Worker and Employer Advisor, O. Reg. 33/12 under the Occupational Health and Safety Act

Effective on April 1, 2012.

The Office of the Worker Adviser (OWA) and the Office of the Employer Adviser (OEA) have functions in relation to reprisals under section 50 of the OHSA. The OWA educates, advises and represents non-unionized workers in relation to reprisals and reprisal complaints or referrals made to the Ontario Labour Relations Board (OLRB). The OEA educates, advises and represents employers with fewer than 50 employees in respect of reprisals and referrals to the OLRB. The OWA and OEA provide their services free of charge.

Bill 28, Registered Human Resources Professionals Act, 2011

Second reading on March 1, 2012.

This is a private member’s bill that would regulate the HR profession in Ontario. Over the next few months, the Human Resources Professionals Association (HRPA) said it will be engaging its members through a website that will provide members with information about the Act; hosting town hall meetings and webinars; and communicating regular status updates on the new Act.

The appeal was dismissed by the Supreme Court of Canada. The Journal de Québec was able to continue its daily publishing during a strike by contracting out services to third parties and by using the articles from other media services owned by QMI. The Quebec Labour Code(Code) prohibits employers from using in the establishment where the strike or lock-out has been declared, the services of a person employed by another employer or the services of another contractor. The Commission des relations du travail concluded that even if the parties who assisted the Journal de Québec to produce the newspaper never entered premises of the employer and communicated their work electronically, they had rendered their services within the establishment where the lock-out had been declared, in contravention of the Code. The Quebec Superior Court and the Quebec Court of Appeal disagreed with the Commission’s decision. The Court of Appeal determined that the Commission improperly modified the law by declaring that sub-contracting is illegal where the work is done outside the physical location of the enterprise where the employees worked. The Court of Appeal found that any change to the notion of establishment, as defined by the Code, must come from the legislature.

Immigration

Announced on March 20, 2012.

In the 2012–13 Quebec Budget, the Minister of Finance announced that an omnibus bill containing modifications to Quebec’s immigration program would be proposed shortly and that the immigration provisions of the bill would be retroactive to March 20, 2012. The proposed bill would establish caps on the number of Quebec immigration applicants that may be accepted between March 21, 2012 and March 31, 2013. Under the proposed bill, there would be two groups of skilled workers. Group One has no numerical limit and Group Two is subject to a limit of 14,300 applications. No other skilled workers would be permitted to apply for a Quebec Certificate of Selection. The proposed bill would also establish caps on the number of business immigrants who may apply for a Quebec Certificate of Selection. Applicants under the Quebec entrepreneur and self-employed categories will be subject to a cap of 215 applications. Applicants under the popular Quebec investor program will now be subject to a cap of 2,700 applications.

Prince Edward Island

Occupational Health and Safety Act General Regulations

In force on Jan. 1, 2013.

Sections 9.1 to 9.13 have been amended. The amendments set out the requirements on an employer regarding the provision and maintenance of first aid supplies and services at each of the employer’s workplaces including first aid kits, first aid providers and first aid rooms.

Nova Scotia

Bill 40, Labour Standards Code (Nova Scotia)

First reading on April 23, 2012.

This private-member’s bill which would amend the Act to prohibit an employer from requiring an employee or prospective employee to provide access to the employee or job candidate’s social networking account or discriminating against the employee or job candidate for refusing to provide such access. The Nova Scotia NDP government is reported to be considering the Bill.

Royal Assent on May 19, 2011. Some sections not yet in force. Discussion paper released on Jan. 16, 2012.

The bill is intended to improve protection for temporary foreign workers. The amendments will: update the provisions regarding the charging of fees to workers for job placement services; require federal government approval before changes to conditions of employment; require the licensing of recruiters; and will require employers who want to recruit temporary foreign workers to register with Access Nova Scotia. The discussion paper covers the following topics: categories of workers to be included; recruiter licensing; employer registration; protection of foreign workers’ wages and benefits; and record keeping. After compiling feedback from the discussion paper, the department will finalize the regulations.

Minimum Wage

In effect on April 1, 2012.

The minimum wage in Nova Scotia rose to $10.15 from the previous rate of $10.00 an hour. The minimum wage for an inexperienced worker (a worker with less than three months’ experience) rose from $9.50 to $9.65. The increase to $10.15 is based on the Low Income Cut Off adjusted for inflation. Future increases to the rate will occur annually in April based on increases to the national consumer price index for the previous year.

Newfoundland and Labrador

Occupational Health and Safety Regulations, 2012

In effect on March 20, 2012.

The consolidation not only adds provisions to the regulations, it also provides easier one-stop access to all occupational health and safety requirements. It reduces duplication and streamlines the occupational health and safety regulatory environment. There is now one set of occupational health and safety regulations for the province covering all sectors, including mining.